The opinion of the court was delivered by: Rovner, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff, Charlene Evans*fn1 has sued defendants, the City
of Evanston and the Director of Personnel of the City of
Evanston, in a two-count Amended Complaint alleging (1)
violation of Title VII of the Civil Rights Act, as amended,
("Title VII") 42 U.S.C. § 2000e, et seq. (Count One); and (2)
deprivation of plaintiff's liberty in violation of the due
process clause of the fourteenth amendment to the United States
Constitution (Count Two). Defendants now move to dismiss under
Fed.R.Civ.P. 12(b)(6). For the reasons stated in this
Memorandum Opinion and Order, defendants' motion is denied.
In 1981, Charlotte Evans applied for the job of firefighter
with the City of Evanston. At that time, she took a physical
agility test, consisting of five events which are intended to
simulate the normal duties of a firefighter: (1) aerial ladder
climb, (2) ladder climb, (3) ladder carry and set-up, (4) hose
connect, and (5) obstacle course. The test was scored by the
total time in which an applicant completed the five events.
Evans completed the physical agility test within twenty minutes
and received a passing score. She then passed a written
examination and was placed on a final list of eligible
candidates, but her name was not reached.
Evans reapplied for the position of firefighter with the City
in 1983, when the next firefighter examination was given. The
1983 physical agility test consisted of the same events used in
the 1981 examination. Prior to taking the physical agility
test, Evans attended an orientation session sponsored by the
City of Evanston. At this session, Evans was informed that any
applicant who successfully completed all events would receive a
passing score and be permitted to take the written examination.
Also prior to the test, Evans received a two-page written
"Firefighter Applicant Information Summary" which described the
physical agility test and stated: "Whether you pass or fail the
[physical agility] examination will be determined by the total
time to complete all of the exercises, including rest time."
Evans completed the 1983 physical agility test in a total time
of fourteen minutes and forty seconds, improving by more than
five minutes upon her 1981 time. Even so, Evans was informed
that she had failed the 1983 physical agility test. The cut-off
passing time was determined upon the application of standard
deviations to the 1983 scores. The 1983 physical agility test
was taken by 793 males, of whom 738 (or 93%) passed, and 39
females, of whom 5 (12.38%) passed.
On January 16, 1983, Evans filed a formal grievance with the
City of Evanston, which was denied in a written finding dated
March 19, 1984. Evans filed a timely charge of employment
discrimination with the EEOC and a "right to sue" letter was
issued on September 14, 1984.
Defendants have misinterpreted the requirements of Title VII.
Although Evans does not specify which section of Title VII she
relies upon, the Amended Complaint states a cause of action
under Section 703(a)(2) of Title VII, which provides in
It shall be an unlawful employment practice for an employer —
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because
of such individual's race, color, religion, sex, or national
42 U.S.C. § 2000e-2(a)(2). Under the Supreme Court's
construction of this provision, relief is provided based upon
disparate impact alone. E.g., Griggs v. Duke Power Co.,
401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Dothhard v.
Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977);
Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d
Griggs and its progeny have established a three-prong
analysis for disparate impact claims. To establish a prima
facie case of disparate impact, a plaintiff need only show
that a facially neutral policy had a disproportionate impact on
a protected group. If the plaintiff succeeds, then the employer
must demonstrate that the policy is job related. Even in such a
case, however, the plaintiff may prevail by showing that the
policy is a mere pretext for discrimination. Connecticut v.
Teal, 457 U.S. at 447, 102 S.Ct. at 2531 (and cases cited
therein). Proof of discriminatory motive is simply not required
under a "disparate-impact," as opposed to ...